The Practical Employer

Today's Post Is Brought to You by the Letters W, A, R, and N

Last week, CNNMoney reportedthat the Sesame Workshop is laying off approximately 10 percent of its employees. The layoff will not affect enough employees to trigger the WARN Act, the federal statute that governs advance notice for certain plant closing and mass layoffs. It does, though, provide a good jumping-off point for a short discussion about the WARN Act and its requirements.

WARN Act is shorthand for the Worker Adjustment and Retraining Notification Act. In general, it requires 60-day advance notice of either a plant closing or a mass layoff.

It covers all employers with 100 or more employees, not counting those who worked less than 6 months in the last 12, and those who work less than 20 hours per week. Even though short-term and part-time workers are not counted for purposes of determining WARN Act coverage, they still must receive notice if affected by an otherwise qualifying plant closing or mass layoff.

For purposes of WARN Act notice, a plant closing is the shut-down of an employment site that will result in an employment loss for 50 or more employees during over 30-day period.

The WARN Act covers a mass layoff that will result in an employment loss at the employment site during any 30-day period for 500 or more employees, or for 50-499 employees if they make up at least 33 percent of the employer's active workforce.

An employment loss for purposes of the WARN Act means either (1) a termination, other than a discharge for cause, voluntary departure, or retirement; (2) a layoff longer than 6 months; or (3) a reduction in an employee's hours of work of more than 50 percent in each month over any 6-month period.

The WARN Act requires employers to provide 4 different notices—to the affected employees, to the employees' union representative (if any), to the State dislocated worker unit, and to the chief elected official of the unit of local government. The Act's regulations detail the information that must be included in each notice.

An employer who violates the Act by closing a plant or affecting a mass layoff without providing sufficient notice is liable to each aggrieved employee for back pay and benefits for the period of violation, up to a maximum of 60 days. An employer can reduce its liability, however, by paying employees during the period of the violation. For example, if an employer is worried about employee sabotage after announcing a layoff, the employer can lay off the employees immediately and pay in lieu of providing the WARN notice.

The Act provides exceptions for faltering companies, unforeseeable business circumstances, and natural disasters that, if met, would excuse an employer from providing the 60-day written notice required by the WARN Act.

If you are near or above the WARN Act's 100-employee threshold, and you are considering closing a plant or laying off a large number of employees, it behooves you to check with employment counsel to determine whether the WARN Act will be triggered, and, if so, what specific notices you must provide and to whom.